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The first backdating case brought by prosecutors is proving to be - not so easy for the government - as the court is considering the defense motion to dismiss. The defense motion (here), in the case against former Brocade Communications CEO Gregory Reyes, has the court pondering whether the necessary mens rea exists to sustain this prosecution. According to law.com the court has given the government until 8 a.m. Monday to file a written brief explaining the basis for finding sufficient mens rea in this case. Several points to note here:

1. This is a case of turning the tables on the government. Typically it is the government that ruins defense counsel's weekend by providing discovery - like Jencks Act statements - on Friday afternoon before a Monday a.m. trial. It is good to see a judge applying this strict time-line for the government to produce its brief. Perhaps feeling these pressures, the government will let other offices in the U.S. know that they need to be more sensitive in providing discovery material sooner than the weekend before trial.

2. The basic premise is that "intent can be inferred from the circumstances." But it is also a basic premise that there needs to be some evidence in order for the case to move to the next level. The interesting question here will be whether the prosecution can provide enough links that will allow this inference to be made.

3. Prosecutions cost money. Is this the kind of case that requires the expenditure of tax dollars?